Business & Professions Code 25662 BP – Minor in Possession of Alcohol

Business and Professions Code 25662 BP makes it illegal for a minor to be in possession of alcohol in a public place. Specifically, persons under the age of 21 may not have alcohol in their possession while:

• on any street or highway or
• at any place open to the public.

Note that law enforcement officers will often write the citation as 25662 BP or 25663 BPC as abbreviations for the California Business and Professions Code.

The language of the code section states that:

25662. (a) Except as provided in Section 25667 or 25668, any person under 21 years of age who possesses any alcoholic beverage on any street or highway or in any public place or in any place open to the public is guilty of a misdemeanor and shall be punished by a fine of two hundred fifty dollars ($250) or the person shall be required to perform not less than 24 hours or more than 32 hours of community service during hours when the person is not employed or is not attending school. A second or subsequent violation shall be punishable as a misdemeanor and the person shall be fined not more than five hundred dollars ($500), or required to perform not less than 36 hours or more than 48 hours of community service during hours when the person is not employed or is not attending school, or a combination of fine and community service as the court deems just. It is the intent of the Legislature that the community service requirements prescribed in this section require service at an alcohol or drug treatment program or facility or at a county coroner’s office, if available, in the area where the violation occurred or where the person resides. This section does not apply to possession by a person under 21 years of age making a delivery of an alcoholic beverage in pursuance of the order of a parent, responsible adult relative, or any other adult designated by the parent or legal guardian, or in pursuance of employment. That person shall have a complete defense if they were following, in a timely manner, the reasonable instructions of a parent, legal guardian, responsible adult relative, or adult designee relating to disposition of the alcoholic beverage.

Examples

Scenarios that would result in minor in possession charges (MIP charges) include:

• a 17-year-old and sneaking beer into an amusement park
• a 20-year-old bringing hard alcohol to the beach with friends
• two 18-year-olds going for walk on a neighborhood sidewalk with mixed drinks

Defenses

Luckily, there are several legal defenses that a person can raise if accused of being a minor with alcohol under the legal drinking age. These include showing that the minor was:

• following instructions of a parent;
• not in a public place; and/or,
• exempt from prosecution.

Penalties

A first conviction is an infraction punishable by a fine of $250 or community service. There is no jail time.

A second or subsequent offense under this statute is a California misdemeanor (and not a felony) punishable by a maximum fine of $500 and/or community service.

In this article, our California criminal defense attorneys will highlight the following about minor in possession laws (MIP laws):

• 1. What are the rules as to minors with alcohol in public?
• 2. Are there defenses to a 25662 BP charge?
  • 2.1. Following instructions of a parent
  • 2.2. In a private place
  • 2.3. Immune from prosecution
• 3. What are the penalties?
• 4. Are there related offenses?
  • 4.1. Underage DUI – VC 23140
  • 4.2. Selling or furnishing alcohol to a minor – BPC 25658
  • 4.3. Cell phone tickets for minor drivers – VC 23124

1. What are the rules as to minors with alcohol in public?

A prosecutor must prove three facts to successfully show that a minor is violating 25662 BPC by being a minor in possession (MIP). These are:

1. The defendant was under the age of 21 (at the time of the incident);
2. The defendant possessed an alcoholic beverage; and,
3. The defendant was on a street, highway, public place, or a place open to the public.

Note that while “public place” and a “place open to the public” seem like the same thing, there is a slight difference between the two.

A “public place” is a place that is always open to the public. Examples are:

• a beach, or
• a sidewalk.

A “place open to the public” refers to private property that the public may use for some purpose. Examples include:

• an amusement park, or
• a shopping center.

2. Are there defenses to a 25662 BP charge?

A person accused under Business and Professions Code 25662 can challenge the accusation by raising a legal defense. A good defense can often get a charge reduced or even dismissed. Please note, however, that it is critical for an accused to hire an attorney to get the most effective defense.

Three common defenses are that the minor was:

1. following instructions of a parent;
2. in a private place; and/or,
3. immune from prosecution.

Other potential defenses involve law enforcement misconduct, such as a police officer coercing a confession. Note that it is not a defense that the minor never engaged in underage drinking.

2.1. Following instructions of a parent

Under BP 25662(a), a minor has a complete defense to a violation of the code section if he possessed alcohol while following the reasonable instructions of his or her:

• parent,
• legal guardian,
• responsible adult relative, or
• adult designee.²

This is considered an “affirmative defense” in that the minor is admitting alcohol possession, but the possession was justified.

2.2. In a private place

Recall that this section only applies to a minor’s possession of alcohol while he is in a public place. This means a minor has a defense if he possessed alcohol while in a private location – such as his home.

2.3. Immune from prosecution

Business and Professions Code 25667 sets forth a specific immunity from prosecution for a minor that makes an emergency report of alcohol use.

This code section states that a person under the age of 21 is immune from criminal prosecution if he:

• called 911 and reported that he (or another person) needed medical help due to alcohol consumption;
• was the first person to make the emergency report; and,
• remained on the scene until medical assistance arrived.³

3. What are the penalties?

A first-time violation of BPC 25662 is treated as an infraction.⁴ The offense is punishable by:

• a fine of $250, or
• 24-32 hours of community service.⁵

A second or subsequent violation is charged as a misdemeanor. The offense is punishable by:

• a maximum fine of $500, and/or
• 36-48 hours of community service.

Note that defendants under 18 years old would be prosecuted in juvenile court and face delinquency adjudications instead of criminal convictions.

4. Are there related offenses?

There are three crimes related to being a minor in possession of alcohol in a public place. These are:

1. underage DUI – VC 23140;
2. selling or furnishing alcohol to a minor – BPC 25658; and,
3. cell phone tickets for minor drivers – VC 23124.

4.1. Underage DUI – VC 23140

Vehicle Code 23140 VC makes it a crime for anyone under 21 to drive with a BAC of .05% or higher.

A defendant violates VC 23140 if:

1. he is under the age of 21 and drives a vehicle;
2. at the time of driving, the defendant is under the influence of or affected by consumption of an alcoholic beverage; and,
3. the defendant’s blood alcohol content (“BAC”) when he drives is 0.05% or greater.⁶

Underage driving under the influence is an infraction. The offense is punishable by:

• a one-year driver’s license suspension/revocation of driving privileges (for a first offense),⁷
• a fine of $100 (for a first offense),⁸ and
• a mandatory alcohol education program of three months or longer (if the offender is over 18 years of age).⁹

4.2. Selling or furnishing alcohol to a minor – BPC 25658

Business and Professions Code 25658 makes it a misdemeanor in California to sell or furnish alcohol to a minor.

Under BPC 25658, it is a crime to:

1. furnish (that is, sell, provide or give), or causing to be sold, furnished, or given away, any alcoholic beverage to a person under the age of 21; or,
2. being a person under 21 and either

a) purchasing an alcoholic beverage, or

b) consuming an alcoholic beverage in a place where alcohol is sold; or,

1. being an on-sale licensee and permitting a person who is under 21 to consume an alcoholic beverage on the premises, even if the licensee doesn’t have actual knowledge that the individual is under 21 years of age.¹⁰

A violation of BPC 25658 is charged as a misdemeanor. The penalties for furnishing alcohol to a minor vary depending on the exact circumstances of a case. Penalties, though, may include substantial fines and imprisonment in the county jail.

4.3. Cell phone tickets for minor drivers – VC 23124

Pursuant to California Vehicle Code 23124 VC minors in California cannot drive a vehicle while using a wireless telephone or an electronic device.

VC 23124 (b) states:

[persons under the age of 18] shall not drive a motor vehicle while using a wireless telephone or an electronic wireless communications device, even if equipped with a hands-free device.¹¹

“Electronic wireless communications device” includes, but is not limited to, a broadband personal communication device, specialized mobile radio device, handheld device or laptop computer with mobile data access, pager, and two-way messaging device.¹²

The penalty for violating VC 23124 is a base fine of $20.00 for a first offense and $50.00 for each offense thereafter.¹³

Please note that the above dollar amounts are the base fines. The actual amount of a ticket will be significantly greater because of fees and assessments.

For additional help…

If you or someone you know has been accused of a criminal charge, per Business and Professions Code 25662, our criminal defense lawyers invite you to contact our law office for a consultation.

Our criminal law offices are available 24/7. And we fight for the best resolution of your case and to keep your criminal record clear.

For similar accusations or charges in Nevada, please see our article on Minor Possession of Alcohol in Nevada Law (NRS 202.020). For similar accusations or charges in Colorado, please see our article on Colorado “Minor in Possession” of Alcohol or Marijuana (CRS 18-13-122).

---

Legal References: